‘Texas’ foster-care system is broken’

Editorial: Federal District Judge Janis Graham Jack puts the needs of neglected children first

Published Dec. 23, 2016

As Texans, we are not always the people we want to be.

Some problems are so intractable and so heartbreaking that it’s easier to look away. Some miseries are so removed from our daily lives that it feels sufficient to mean well and hope for the best.

It takes an extraordinary person to hold up a mirror that shows us the stark reality of our indifference. And it takes a powerful voice to make it clear that our state has countenanced unspeakable suffering for far too long.

This year, federal District Judge Janis Graham Jack, our 2016 Texan of the Year, held that mirror steady. She punctured our comfortable obliviousness to the appalling treatment that 12,000 children in permanent managing conservatorship — foster kids — are enduring while in the care of the state of Texas.

US District Judge Janis Graham Jack

Born 1946 in Los Angeles, California

Federal Judicial Service

Judge, U.S. District Court, Southern District of Texas: Nominated by Bill Clinton on November 19, 1993. Confirmed by the Senate on March 10, 1994, and received commission on March 11, 1994. Assumed senior status on June 1, 2011.

Education

University of St. Thomas School of Nursing, R.N., 1969; University of Baltimore, B.A., 1974; South Texas College of Law, J.D., 1981

Professional Career

Private practice, Corpus Christi, Texas, 1981-1993

Source: Center for the Federal Judiciary

In doing so, Jack focused statewide attention not only on the plight of foster children, but on all the vulnerable kids, nearly 30,000 of them, whose welfare is overseen by the Texas Department of Family and Protective Services, the state agency that oversees Child Protective Services.

These are our kids, Jack told us in uncompromising terms. And we have failed them.

“Texas’ foster-care system is broken,” wrote Jack in the landmark ruling. “Most importantly, it is broken for children, who almost uniformly leave State custody more damaged than when they entered.”

Some Texas politicians and activists have tried several times to change the foster-care system, without success. The difference this time is that a federal judge is leading the charge. For her hard work to change entrenched problems, and for igniting a fire that has gained momentum all year, Judge Janis Jack is the 2016 Texan of the Year.

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Catalyst for change

The ruling, 260 pages long, capped a years-long lawsuit, M.D. vs. Abbott, filed by a New York-based children’s advocacy group that works to reform state child-welfare systems. Texas attorneys represented the plaintiffs, a dozen foster children whose experiences represented the norm for kids in permanent managing conservatorship, those whose homes are so dangerous and dysfunctional that they can never go back.

They become, essentially, the children of the state. In a just world, they would be at the front of the line for the best care and compassion society could offer. In reality, they are, in Jack’s words, “the forgotten children.”

The ruling itself is an extraordinary document: It examines Texas child-welfare procedures in more exacting detail than many DFPS bureaucrats were able to define at trial. It identifies systemic failings that have been repeated for decades.

And it describes in harrowing detail a system at once Dickensian in its pathos and Orwellian in its bureaucratic indifference.

“Texas’ PMC children have been shuttled throughout a system where rape, abuse, psychotropic medication, and instability are the norm,” the judge wrote.

With that, she concluded that Texas is violating the 14th Amendment rights of all Texas foster children “to be free from an unreasonable risk of harm caused by the State,” and set a mandate for major reform.

“Dramatic change needs a catalyst,” said Houston lawyer Paul Yetter, the lead plaintiffs’ attorney in the case. “Judge Jack’s opinion shines such a bright light on this broken system that the harm to these children cannot be ignored.”

Timeline

On Dec. 17, 2015, Judge Janis Graham Jack issued a ruling in a long-running case, M.D. vs. Abbott, that blasted Texas’ system for children in long-term foster care, saying the state violates children’s constitutional rights. As the judge’s blistering opinion gradually captured public attention, it focused an increasingly broad spotlight on inadequacies in the state’s child-welfare agency as a whole.

Since then, Jack and the state have battled over whether she will continue her oversight of the foster-care system. It’s a battle that will clearly spill over into the upcoming legislative session.

March 21 The U.S. 5th Circuit Court of Appeals in New Orleans rules against the state and allows Jack to proceed, stating that “the safety and rights of vulnerable children are at stake.”

Jack names two special masters, a Duke University law professor and a New Jersey child welfare administrator, to make recommendations for reforming Texas’ foster-care system.

April 1 Paxton’s office files a petition seeking to void appointment of the special masters and stop them from conducting their study.

July 7 The 5th Circuit Court again rules against the state, allowing the special masters to continue.

Nov. 4 The special masters issue a 13-page list that includes 56 recommendations, saying CPS workers’ caseloads should be cut in half and major structural changes made in how individual cases are managed. A spokesman for the Department of Family and Protective Services, CPS’ parent agency, says the state is “already working day and night” on many of those issues.

Nov. 21 Paxton’s office files its response to the special masters’ report, objecting to virtually every individual recommendation. The response derides the recommendations for reform as vague, unworkable and too expensive. Jack is expected to hold a hearing to formally evaluate the report.

As legal rulings go, this one was a blockbuster. Yet because of the timing — a week before Christmas, with public attention turned to a contentious national election — the impact came not a sudden flood, but as a steady trickle that gathered force through the opening months of 2016.

Eventually, public attention crystallized on the plight of Texas’ child-welfare system as a whole: tens of thousands of children, both those under temporary state supervision and in permanent state care.

The state (publicly, at least) took notice. Gov. Greg Abbott in May appointed a new DFPS director, who in turn ordered a major overhaul of Child Protective Services’ top management. By October, CPS laid out a plan for more workers and higher salaries. Lawmakers have pledged to make funding, reform and renewed oversight a top priority in the 85th Legislature, which opens next month.

In the courtroom, though, the state has fought Jack’s orders every step of the way. They argue that she has overstepped her authority in ordering reforms, appointing special masters to review the foster-care system, and establishing caseworker loads and staffing norms. Recently, Texas Attorney General Ken Paxton filed appeals to even the most minor changes proposed by Jack’s team of special masters.

So far, appellate courts have sided with the judge. And if anyone has the determination to stay the course for as long as it takes, legal observers say it’s Janis Jack.

“She believes federal court orders must be respected and must be obeyed,” said Corpus Christi attorney David Perry, who has known Jack since she was a South Texas trial attorney in the 1970s. “She is very smart, very capable, and she works very hard to make things come out right.”

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Prepared and knowledgeable

Federal judges, by necessity, operate on a detached and impersonal plane. Because of the high stakes surrounding the ongoing foster-care litigation, Jack declined to be interviewed, or even photographed.

But legal colleagues and friends describe an intelligent, determined woman who demands careful preparation and straight answers from the lawyers who come before her. In the courtroom, she doesn’t suffer fools gladly. She doesn’t suffer them at all.

Her written ruling in the foster-care case, for instance, expressed unfiltered outrage over a state witness, a psychologist who examined one of the plaintiffs. The subject was a teenage girl so damaged by years of being forgotten by caseworkers and shuffled between placements that experts said she will probably never be able to lead a normal adult life.

On interviewing the girl, the state’s psychologist repeated that opinion, which had been included in confidential medical records, to the girl herself.

Jack was furious at what she viewed not only as a violation of doctor-patient confidentiality, but as an unprofessional lapse of judgment that could only serve to deepen the fragile teen’s despair.

The psychologist’s conduct “is shocking,” wrote Jack, with barely concealed fury. “The Court disregards [his] testimony because of his misconduct and self-contradiction. [He] showed an overall indifference to [the teen’s] well-being, professional standards, and the truth.”

On anonymous review sites, where lawyers can rate and comment on judges, Jack is routinely either warmly admired or angrily excoriated.

“She is very smart, very capable, and she works very hard to get things right. She believes federal court orders must be respected and must be obeyed, especially when you are talking about the welfare of children.”

Corpus Christi attorney David Perry, a longtime friend

Acquaintances say that’s because she’s often better prepared and more knowledgeable than the litigants themselves, and she isn’t shy about showing it. And she has zero tolerance for lawyers who try to patch over flimsy arguments with grandiose claims or rhetorical flourishes.

“She’s always prepared, efficient and a couple of steps ahead of the lawyers,” Yetter said.

The message: Do not try to double-talk your way past Judge Jack. It won’t work.

It certainly didn’t work in what was previously Jack’s most celebrated case. That was two decades ago, when she changed the playing field for trial lawyers caught up in a heady era of profitable, class-action commercial liability lawsuits.

The New York Times called it “a turning point in the tort wars.”

“For the lawyers who file lawsuits against corporations, it looked like the next big thing,” the Times wrote: “The next fen-phen, asbestos or even tobacco, the mother of all jackpots.”

“It” was silica, an industrial agent with several commercial purposes that can cause deadly lung disease when inhaled over time. And it looked like a plaintiffs’ attorney payday worthy of a John Grisham plot.

Yet after a lengthy and painstakingly exacting trial, Jack blasted the plaintiffs, excoriating them for mass recruitment of would-be patients, paying doctors for quick-look X-ray diagnoses, and manufacturing what one industry official called “a legal epidemic, not a medical epidemic.”

Jack, who before her legal career trained as a nurse, reviewed tens of thousands of pages of depositions and medical records. Her determination: While silicosis is a serious illness, its incidence is actually declining, and most workers are adequately protected from exposure.

“Those suffering the effects of the disease do not need an inflated number of claims to lend gravitas to their situation,” she wrote. Nor, she wrote, should they be used to enrich lawyers and doctors: “These diagnoses were driven by neither health nor justice: They were manufactured for money.”

It was not a famous decision outside legal circles. But inside them, it signaled a sharp rein on what many viewed as an epidemic of runaway, quick-money class-action medical liability cases.

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From activist to attorney

So who, exactly, is this most no-nonsense of jurists?

Jack, 70, was appointed a federal judge for the Southern District of Texas by President Bill Clinton in 1993. She has been on “senior status,” a kind of semiretirement for federal judges, since 2010.

Born in Los Angeles, she attended Amon Carter High School in Fort Worth. She originally was set on a medical career and trained as a registered nurse.

In a 2006 profile story published in the Corpus Christi Caller-Times, Jack said that after earning the degree, she decided she wasn’t cut out for nursing.

“I wanted to do something more independent,” she said.

By then, Jack was living in Corpus Christi, married to a prominent cardiologist. According to friends, she became interested in activism, politics and law.

Jack was an early campaigner for the Equal Rights Amendment, the proposed gender-equality constitutional amendment debated throughout the 1970s until 1982, when it failed ratification by three states.

“Dramatic change needs a catalyst. Foster children are not politically powerful, so their voices are never heard. Judge Jack’s opinion shines such a bright light on this broken system that the harm to these children cannot be ignored.”

Paul Yetter, lead plaintiff’s counsel in MD vs. Abbott

During those years, she bonded with a fellow Corpus Christi activist named Sandra Watts.

“She was a nurse, and I was a teacher,” says Watts, who is now a state district judge. “We became very, very good friends, and we both had a strong interest in going into law.”

The catch: Corpus Christi had no law school. So the two women applied and were accepted into Houston’s South Texas College of Law, and they became student commuters. Two or three times every week, the pair made the round trip to Houston via Southwest Airlines to attend classes.

“It was quite the grueling experience,” Watts recalls. “We’d leave Corpus Christi first thing in the morning, and we’d be coming home on the 10:45 flight that arrived at midnight.”

They were excellent students: One of them graduated first in their law school class; the other second. Watts won’t say which was which.

After earning her law degree, Jack practiced in Corpus Christi for several years, specializing in family law, which gave her an upfront familiarity with the plight of vulnerable kids caught up in the legal system through no fault of their own.

After assuming the bench, she quickly established a reputation as being fair, thorough and mercilessly critical of unprepared attorneys, untruthful witnesses and slipshod legal thinking.

“There’s not a shy bone in her body,” said another longtime friend, Corpus Christi attorney Darrell Barger. “If she sees a flaw in the system, she calls it. She always does.” Barger adds: “She’s also just a good person with a good heart.”

The plaintiffs

Nearly half of Judge Janis Jack’s landmark ruling is devoted to case summaries of the plaintiffs, 12 children who were in permanent managing conservatorship of the state of Texas between 2001 and 2015. Their stories, carefully assembled from both direct testimony and sometimes incomplete case files, create a disturbing portrait of a dysfunctional system that not only failed to care for desperately needy children, but subjected them to repeated and often unrelenting trauma. For many of them, the damage is likely to be permanent.

“The Court has written out these lengthy narratives in part to establish a record, but also because these children have too long been forgotten,” Jack wrote. “Their stories deserve to be told.”

These are just a few examples, condensed from the judge’s summaries. In court records, the identities of these real-life children are protected by referring to them only by initials. In summarizing their stories, The Dallas Morning News has used pseudonyms.

Melissa

Derek

Sarah

Angela

Hector

Keisha

Melissa

Melissa spent seven years in foster care, from age 10 to 17. During those years, she was shuffled between 19 placements, including 11 stays in psychiatric hospitals. She attended nine schools and was assigned to 16 different caseworkers.

Separated from her siblings and home community, Melissa made repeated outcries of sexual abuse, which were rarely investigated. At one point, she ran away from a group home and was later arrested by Houston police. Her then-caseworker was unable to identify her photograph, having never met her personally.

In another instance, an attorney representing Melissa found her living in a licensed group home with nine other girls in a rattletrap trailer that “smelled of urine and mildew.” The attorney observed she was suffering from untreated cuts to her arms and legs that she had inflicted herself.

At 17, Melissa ran away from the state’s foster-care system for the last time. When the class-action suit in which she was a plaintiff reached the courtroom, she was not there. As of her 18th birthday, she had aged out of state care, and had not been located.

Telling the children’s stories

A good heart, of course, cannot help but be stricken by the miserable histories of all-too-many children in Texas’ foster-care system.

Jack, who has devoted five years to the case, said during an April conference call with participants in the case that working through the tragic, chaotic histories of so many helpless children has not been easy.

“Frankly,” she said, “I couldn’t stand to think about it at times.”

Jack devoted nearly half of her written ruling to detailed histories of the named child plaintiffs.

“These children have for too long been forgotten,” she wrote. “Their stories deserve to be told.”

They include an 8-year-old boy who was raped by older teens soon after his arrival in a group home.

“[T]he department did everything it could to cover up that [the boy] was sexually abused,” the judge wrote, noting that psychological evaluations conducted while the boy was in state care indicated he was severely depressed and had suicidal thoughts.

There was a 7-year-old girl, older than her years, whose only human connections were the two younger sisters she cared for and protected — and from whom she was permanently separated.

And a teenager who has been bounced from group home to treatment center to psychiatric hospital so many times she stopped counting, and who did not see a caseworker for three years.

Children who were so heavily medicated and so frequently transferred between schools that they could not learn even the basics. Children who were trained by experience to view the world through a lens of wary, feral mistrust. Children who “aged out” of care at 18 with no skills, no prospects, no social connections.

“Texas’ [foster] children have been shuttled throughout a system where rape, abuse, psychotropic medication, and instability are the norm.”

Federal District Judge Janis Graham Jack

Children who learned to expect nothing from the state, from the system, or from their fellow human beings.

Judge Jack summarized:

“Children often enter foster care at the Basic service level, are assigned a carousel of overburdened caseworkers, suffer abuse and neglect that is rarely confirmed or treated, are shuttled between placements — often inappropriate for their needs — throughout the State, are migrated through schools at a rate that makes academic achievement impossible, are medicated with psychotropic drugs, and then age out of foster care at the Intense service level, damaged, institutionalized, and unable to succeed as adults.”

How does a state as proud and prosperous as ours allow this to happen?

With a veneer of good intentions, but not much underneath.

“The department has been stretched too thin for too many years,” said state Sen. Carlos Uresti, D-San Antonio, who was one of the first Texas legislators to urge state lawmakers to “take Judge Janis Jack’s ruling to heart.”

“We have been taking steps in the right direction, when we should have been making leaps.”

And then, as Jack points out, is the agency’s bewildering blindness to its own recent history.

Since 2004, DFPS has seen a revolving door of eight commissioners. During those years, state officials — governors and legislators — have launched sweeping studies and detailed investigations into CPS shortcomings.

Yet studies are shelved and forgotten, Jack wrote, noting that the agency “has no institutional memory.” The state, she said, “commissions full-scale audits of its foster-care system every five to 10 years, always reaching the same conclusions, but never producing improvement.”

Which is where Texas finds itself again: in the midst of a child-welfare crisis, with an irate public, anxious legislators, a freshly shaken-up agency administration, and a host of good intentions. The sole difference, in this go-round, is the federal judge steering the foster-care half of the system.

It will be a lengthy process. With the expected state appeals, it’s unlikely that Jack’s final order in the case will be entered before the upcoming legislative session ends, putting state and federal timetables at odds. And so far, Texas has put up a furious fight against allowing the judge to order reforms to its foster-care system.

But observers say the state had its chance — more than once — and blew it.

“The bureaucrats and the legislators seem oblivious to the impact they have on the children they’re responsible for,” said Perry, the Corpus Christi attorney. “Something has to change. And if there is anyone who can manage that, she can do it.”

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